Ole O. Moen, Race, Color, and Partial Blindness: Affirmative Action under the Law. Oslo: Solum Forlag, 2001, 302 p.
Ole O. Moen has written an excellent book about affirmative action as the U.S. Supreme Court has worked on it. He has made a close reading of the Court records and done exhaustive research on all the cases from the 1970's till the present, including an extended bibliography pertaining to the subject.
The work includes a strong introduction (chapter 1) and conclusion (chapter 22) and also six very useful appendices containing legal terms, court membership, standards of review, a legal cases chronology, a survey of the court system and a brief profile of the Supreme Court in the period discussed.
Chapters 1 to 5 give the historical and political basis of the affirmative action process; chapters 6 to 21 follow the Court's evolution towards a steadily more conservative position. Moen's demonstration of his thesis is solid and can be agreed to without any problem: Affirmative Action, as it appeared in the 1964 Civil Rights Act, had a universal and inclusive ambition and was really implemented under Richard Nixon and transformed to promote group identities. The president had the same goal as black civil rights advocates for very different reasons: He wanted to get the political support of the African Americans, but as he failed in this regard he was no longer interested in promoting such programs; nevertheless, affirmative action went its own way in the society in general and in the court system.
The Supreme Court, in the period under study, turned more conservative and Moen has studied this process meticulously, emphasizing the links between new judges and the cases they chose to hear. Very interesting is his treatment of such a fundamental case as U. of Cal. at Davis v. Bakke (1978), but generally his approach combines astutely chronology and themes, most cases involving hiring and layoff of minorities' workers and problems of gender equality. He devotes three chapters (11, 12, 13) to the conservative shift of the court starting with the nomination of William Rehnquist as Chief Justice in 1986, and implemented in earnest from 1988, to curtail the civil rights litigation issued from the Civil Rights Act of 1964 and onwards. Judge Scalia was clear about it: "To pursue the concept of racial entitlement … is to reinforce and preserve for future … mischief the way of thinking that produced slavery, race privilege and race hatred. In the eyes of the government, we are just one race here. It is American" (166). That does not mean the end of affirmative action cases, but such programs were closely scrutinized to give a strict definition of race, as well as to limit redistricting cases after 1990 (chapters 15 & 16).
The Court's evolution was challenged by the polemics around affirmative action, which arose among some academics and intellectuals; neo-conservatives denounced alleged abuses in the programs, pretended to go back to color-blindness and feared the rise of multiculturalism. A new contour of affirmative action had to be drawn, but the judges did not want to enter a philosophical debate and preferred to stick to the judicial aspects of the cases they agreed to consider and they kept a sort of balance about equality and due process (chapter 17 to 21). Moen has studied a great number of essays on affirmative action and explains very well the links between many of the people involved in the debate; he also gives all the major elements in the discussion about the usefulness of the programs.
His concluding synthesis is very clear and the present reviewer agrees with his final observation regarding a major contradiction of American society: "Right now the nation seems to experience a general reform fatigue, but with this nation you can never tell. Americans have a remarkable tendency to do the unexpected and an equally amazing ability to achieve great ends" (257).
Professor of North American History, University of Paris VIII.